Sexual offences

This is when a person unlawfully penetrates the genital organs of another person with;

  • Any part of their body or of another or;
  • With an object manipulated by another or them. This object is not used for proper and professional hygienic or medical purposes. {Section 5(1a) Sexual Offences Act}

 

Sexual assault can be verbal, visual, or anything that forces a person to join in unwanted sexual contact or attention. Examples of this are voyeurism (when someone watches another person(s) during their intimate moments), exhibitionism (when someone exposes him/herself in public), incest (sexual contact between family members), and sexual harassment. It can happen in different situations, in the home by someone you know, on a date, or by a stranger in an isolated place.

Sexual assault also includes any type of sexual activity that you do not consent to, but is not limited to, gang rape, the deliberate transmission of HIV (or other life threatening sexually transmitted disease) and incest (sexual relations with a relative), Inappropriate touching, Vaginal, anal, or oral penetration, Sexual intercourse that you say “NO” to, Rape, Attempted rape, Child molestation.

[For more information on this you can visit: https://covaw.or.ke/law-procedures/]

Consent is defined as when a person agrees by choice and has the freedom and capacity to make that choice. {Section 42 of the Sexual Offences Act}

  • Express Consent-this is consent that is clearly and unmistakably stated.
  • Implied consent-this is consent inferred from a person’s conduct.
  • Informed consent-this is when a person gives consent with full knowledge of the risks and the other alternatives.
    • Any person used or threatened to use violence against the complainant at the time of the act or immediately before the first sexual activity.
    • Any person caused the complainant to fear at the time of the act or immediately before the first sexual act, that violence was being used or would be used immediately against another person.
    • The complainant was and the defendant was not unlawfully detained.
    • The complainant was asleep or otherwise unconscious at the time.
    • The complainant was unable to communicate consent to the defendant because of a disability.
    • Any person administered /caused the complainant to be stupefied /overpowered at the time of the relevant act.{Section 44(2) of the Sexual Offences Act}

    Is the victim’s consent a defense to a charge of sexual assault?

    There are some circumstances where the law says that you cannot properly consent. Consent obtained by force or threat is not consent. If someone has sex with you when you are asleep, unconscious, or under the influence of alcohol, drugs or medicine, you have not given your consent. A child under 18 years old cannot legally consent to sex.

  • These are acts committed;
    • In any coercive circumstance e.g. abuse of power by a superior causing a junior to be incapable of resisting. 
    • Under false pretenses/fraudulent means e.g. a person is deceived that the other party is married to them.
    • In respect to a person who is incapable of appreciating the nature of an act which causes the offence e.g. a person who is asleep/unconscious/ under the influence of drugs, alcohol or other substances which impair a person’s consciousness and judgment. 

A person commits the offence termed rape if;

    • He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs.
    • The other person does not consent to the penetration.
  • Consent is obtained by force or by means of threats or intimidation of any kind.{Section 3(1) of the Sexual Offences Act}

NB/Rape is an offence which is committed not only by male persons against females, but also by female persons against males and even against persons of the same sex.

A person guilty of the offence of rape is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.{Section 3(3) of the Sexual Offences Act}

This is when a person attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs.

Any person found guilty of this offence is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life. {Section 4 of the Sexual Offences Act}

Date rape drugs are substances that are commonly used to intoxicate or knock out people for the purpose of raping or sexually assaulting them. There are many substances that fall into this category and they are often given to people orally without their knowledge through methods such as slipping them into their drink

This is where a person uses violence or threatens to use violence to force his or her spouse to have sex with them.

No, there is no legal protection against rape within marriage as per section 43(5) intentional and unlawful acts do not apply to persons who are lawfully married.

However, lack of consent in marital sexual relations can be considered as a form of cruelty thus constituting a ground for divorce in civil cases.

See; Nairobi High Court Divorce Cause No. 84 of 2005.

Is it possible for one party in a marriage to have the other party prosecuted for a sexual offence?

Yes. A spouse can prosecute his/her partner for deliberately transmitting HIV or any other life threatening STD to them regardless of whether the party consented to the act or not. {Section 26 (1) of the Sexual Offences Act}

The penalty for such an offence is a minimum term of 15 years’ imprisonment to a maximum of life imprisonment.

 A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life. {Section 5(2) Sexual Offences Act}

This is an offence where a person commits an act which causes penetration with a child. 

  • A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
  •  A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
  •  A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
  • Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children’s Act (Cap. 141).{Section 8 of the Sexual Offences Act}

 

Yes, if a woman has sex with an underage boy, then that will be considered defilement.

The same applies if a man has sex with an underage girl. 

The court first makes a due inquiry on the age of the accused and complainant and is guided by Section 14 of the Penal Code which deals with criminal responsibility in relation to immature age to determine the case.

 Section 14 provides;

  • A person under the age of eight years is not criminally responsible for any act or omission.
  • A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.
  • A male person under the age of twelve years is presumed to be incapable of having carnal knowledge

Does the Sexual offences Act permit or allow people to engage in sexual acts for cultural or religious purposes without the consent of the other party?

No, as per section 29 of the Sexual Offences Act  any person who for cultural or religious reasons forces another person to engage in a sexual act or any act that amounts to an offence under the Act is guilty of an offence and is liable upon conviction to imprisonment for a term of not less than ten years.

  • Defilement.
  • Attempted defilement.
  • Gang rape.
  • Indecent act with child or adult.
  • Promotion of sexual offences with a child.
  • Child trafficking.
  • Child sex tourism.
  • Child prostitution.
  • Child pornography

A parent is prohibited by law from withdrawing a sexual offences case. In criminal cases, the state prosecutes on behalf of the victim. Consequently, only the state through the Director of Public Prosecution (DPP) can withdraw a criminal case of such magnitude.

  • Try not to take a shower or change your clothes before you go to the police station or are examined by a doctor or clinical officer.
    • If you must take off the clothes you were wearing during the assault, wrap them in newspaper or paper bag (not a plastic bag, which may destroy evidence) and bring them to the hospital with you.  These steps will help medical staff to collect evidence such as hair, nail and skin.
  • Do not touch or remove anything from the place where the assault took place because important evidence may be found there.

 

  • The police will make a record of the report in the occurrence book (OB) and you will then be given an OB number.
  • The police will ask you questions about the assault and you should answer the questions honestly and completely.
  • The police may ask you some questions which may be hard for you to talk about.  
  • The police may also write down what you tell them and ask you to sign it at the bottom. This is called a “written statement”.  Read it carefully.  Before you sign it, be sure it correctly states what you told them.
  • The police will complete a form called a “P3” form.  This is a medical form.  It is important to get this form.  It is given to you by the police.  You should not be asked to pay for the form.  You should not offer to pay to get the form.  It is free.  If you are not given a P3 form, you should ask for one.
  • If you have not already been to the hospital, you will need to go to the hospital with the P3 form, which will be completed by a doctor or a clinical officer.
  • If you went to the hospital before going to the police station, the hospital should have given you a PRC1 form.  You should bring that form to the police station and give it to the police.  They will attach it to the P3 form.
  • If you have identification, such as a birth certificate or a driver’s license, you should bring it with you to the police station.

The role of the Police is to properly collect all such evidence, including clothing and undergarments worn by the victim. Preserve the bedding, or any other object on which the rape took place, and send it to the crime lab for analysis.

  • If possible, go to the police station with someone you trust before going to the hospital.
  •  At the hospital, a doctor or clinical officer will ask you questions about the sexual assault.  Answer them as honestly and completely as you can.
  • A doctor or clinical officer will examine your whole body and take samples of your blood and urine.
  • You will also be given treatment (PEP) to help protect against HIV, other sexually transmitted infections, and pregnancy.
  • If you reported the sexual assault to the police before going to the hospital, you should have received a P3 form which will be completed and signed by the doctor or clinical officer.
  • If you have not yet reported the assault to the police or do not have a P3 form, the doctor or clinical officer will record the medical information on a “PRC1” form (Post Rape Care form) and sign the form.  There will be three copies of form PRC1, a white copy for you, a yellow copy to be given to the police and a green copy that will be kept by the hospital.
  • You should take a spare set of clothes with you to the hospital as the clinical officer may wish to collect the clothes worn during the incident as evidence.
  •  If you have identification, such as a birth certificate or a driver’s license, you should bring it with you to the hospital.

Gender-based violence both reflects and reinforces inequities between men and women and compromises the health, dignity, security and autonomy of its victims.

It encompasses a wide range of human rights violations, including sexual abuse of children, rape, domestic violence, sexual assault and harassment, trafficking of women and girls and several harmful traditional practices. Although the higher number of victims are female, men can also be victims of gender based violence such as murder and rape; and emotional abuse, such as coercion and abusive language. Trafficking of women and girls for prostitution, forced marriage, sexual harassment and Intimidation at work is additional examples of violence against women.

Sexual harassment is coerced, unethical and/or unwanted sexual attention (including verbal harassment, demands for sex and/or subtle suggestions). Sexual harassment occurs when a superior (teacher, employer, etc.) causes someone to believe that they must submit to unwelcome sexual conduct in order to participate in a school or work activity.

Section 23(1) –Sexual Offences Act 

Imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both.